Boyd v. Cook, S-17-177

CourtSupreme Court of Nebraska
Writing for the CourtCassel, J.
Citation906 N.W.2d 31,298 Neb. 819
Parties Scott T. BOYD, M.D., appellant, and Great Plains Diagnostics, LLC, appellee, v. John COOK, M.D., et al., appellees.
Docket NumberNo. S-17-177,S-17-177
Decision Date02 February 2018

298 Neb. 819
906 N.W.2d 31

Scott T. BOYD, M.D., appellant,
Great Plains Diagnostics, LLC, appellee,
John COOK, M.D., et al., appellees.

No. S-17-177

Supreme Court of Nebraska.

Filed February 2, 2018

Steven A. Klenda and Geoffrey N. Blue, of Klenda, Gessler & Blue, L.L.C., and Robert W. Futhey and Mark Laughlin, of Fraser Stryker, P.C., L.L.O., Omaha, for appellant and appellee Great Plains Diagnostics, LLC.

James J. Frost, of McGrath, North, Mullin & Kratz, P.C., L.L.O., Omaha, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Cassel, J.

298 Neb. 821


Nearly 3 years into litigation between two doctors and various associated business entities, the district court determined that because of arbitration and venue provisions in an employment contract, it lacked jurisdiction. The court indefinitely

906 N.W.2d 36

stayed a claim for dissolution of one entity and dismissed all other claims. This appeal followed. Because the arbitration provision, which neither party sought to enforce, did not deprive the court of jurisdiction, we reverse, and remand for further proceedings.


John Cook, M.D., owned Midwest Pain Clinic, P.C. (Midwest Pain). In early 2012, Midwest Pain employed Scott T. Boyd, M. D., as an anesthesiologist. Midwest Pain and Boyd detailed the terms of Boyd's employment in a written contract.

The employment contract contained a jurisdiction and venue provision: "Except as set forth in [an arbitration provision], the [c]ourt located in Union County, South Dakota, shall have jurisdiction and be the venue of all disputes between [Midwest Pain] and [Boyd], whether such disputes arise from this [a]greement or otherwise." And it contained an arbitration provision stating that "any dispute or controversy arising out of the interpretation or operation" of the contract "shall be resolved by arbitration" as set forth in the agreement.

Based on Boyd's experience operating a urinalysis laboratory, Boyd, Cook, and Cook's son, Jacob Cook (Jacob), formed Great Plains Diagnostics, LLC (Great Plains), in early 2013.

298 Neb. 822

Great Plains was a urinalysis laboratory that operated in a building owned by an associated entity and in which Midwest Pain and another associated entity also operated. Boyd was the majority owner and manager of Great Plains, while Jacob was its executive director. Jacob was also the office manager of Midwest Pain.

Disputes arose regarding access to documents and billing data, billing procedures, and billing codes assigned to services provided. In October 2013, Jacob resigned his positions at both Midwest Pain and Great Plains to take another job out of state. That same month, offers regarding a partnership and a draft separation agreement were refused.

Things apparently came to a head in early January 2014. On January 10, Boyd's employment with Midwest Pain was terminated and he was locked out of Great Plains' offices.

In April 2014, Cook and Jacob sued to dissolve Great Plains. They sought dissolution, the appointment of a receiver to wind up Great Plains' business, and an order enjoining Boyd from disposing of any of Great Plains' assets.

Additional claims, styled as counterclaims, followed. Boyd and Great Plains eventually asserted 10 different claims against Cook, Jacob, Midwest Pain, and other associated entities. Midwest Pain asserted a counterclaim against Boyd, and it made a separate counterclaim with another entity against Great Plains.

Cook, Jacob, Midwest Pain, and two other entities moved for summary judgment on 7 of the 10 claims made by Boyd and Great Plains, which motion, in February 2016, the district court overruled in part and sustained in part. The court granted summary judgment on four of the claims by Boyd and Great Plains and on two other claims as to Boyd, but not as to Great Plains. And the court denied summary judgment on one of the claims.

In January 2017, the district court dismissed sua sponte all of the claims in the case other than the dissolution proceeding as to Great Plains. The court noted that Boyd's employment

298 Neb. 823

contract with Midwest Pain contained an arbitration provision and a provision that jurisdiction and venue for all disputes between Boyd and Midwest Pain are proper in Union County, South Dakota. The court concluded that it lacked jurisdiction over the causes of action

906 N.W.2d 37

in the case, excluding the Great Plains dissolution proceeding, and dismissed those claims. It stayed the dissolution proceeding pending the outcome of arbitration. Boyd moved the court to reconsider its dismissal, which motion the court overruled.

Boyd appealed the district court's order of dismissal and its prior order sustaining in part the motion for summary judgment. We moved the appeal to our docket.


Boyd's assignments of error, restated, are that the district court erred by (1) dismissing the case for lack of jurisdiction, (2) granting summary judgment on his claim under the Nebraska Wage Payment and Collection Act, and (3) granting summary judgment on his fraudulent inducement claim. Cook and others take no position on the district court's sua sponte dismissal, but argue that this court lacks appellate jurisdiction to review the latter two assignments of error relating to the district court's partial grant of summary judgment. In the alternative, they argue that the district court correctly granted summary judgment on the claims from which Boyd appeals.


When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court's.1

While a court's decision to issue a stay in an action is generally reviewed under an abuse of discretion standard of

298 Neb. 824

review,2 the decision whether to stay proceedings and compel arbitration is a question of law that an appellate court reviews de novo.3



Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.4 To determine whether we have appellate jurisdiction to review the district court's order of dismissal or its prior summary judgment order, we first recall principles of Nebraska law governing appellate jurisdiction.

(a) Nebraska Appellate Jurisdiction

Under the Nebraska Constitution, this court has only "such appellate jurisdiction as may be provided by law."5 That is to say, "in order for this court to have jurisdiction over an appeal, appellate jurisdiction must be specifically provided by the Legislature."6

906 N.W.2d 38

The Legislature has provided that appellate courts have jurisdiction to review the judgments and final orders of the district courts.7 And the Legislature has defined a "judgment"

298 Neb. 825

as "the final determination of the rights of the parties in an action."8 A final judgment is one that disposes of the case either by dismissing it before hearing is had upon the merits, or after trial by rendition of judgment for the plaintiff or defendant.9 Conversely, every direction of a court or judge, made or entered in writing and not included in a judgment, is an order.10

"Final orders" are also defined by statute:

An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed, as provided in this chapter.11

Thus, the only three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.12

Also, Neb. Rev. Stat. § 25-1315 (Reissue 2016) provides that when a case involves multiple claims or multiple parties, a party may generally only appeal when all claims and the rights of all parties have been resolved. If a court issues an order that is final as to some, but not all, of the claims or parties, such an order is appealable "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."13 In the absence of such an entry

298 Neb. 826

of judgment, orders adjudicating...

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